Baird v. Baptist Society

• Decision Date: 28 February 1911
• Citation: 208 Mass. 29,94 N.E. 296
• Parties: BAIRD v. BAPTIST SOCIETY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 29

94 N.E. 296

BAIRD v. BAPTIST SOCIETY.

Supreme Judicial Court of Massachusetts, Essex.

February 28, 1911

COUNSEL

Timothy S. Herlihy, for appellant.

John H Casey, Nathaniel L. Jones, and Ernest Foss, for appellee.

OPINION

HAMMOND J.

The question is whether St. 1908, c. 305, applies to the case stated in the plaintiff's declaration.

At the time of the passage of this statute there were two kinds of liability for damages, suffered by a traveler through a defect in a public way, the one created by statute, the other existing at common law. The first was imposed upon only such parties as were charged by law with the duty of keeping the ways in proper condition, and was based upon a neglect to perform that duty. The second rested upon parties by whose acts, positive or negligent, a defect was created in the way. One of the conditions of the statutory liability was that within a certain prescribed time after the injury there should be given to the person sought to be charged a notice of the time, place, and cause of action. Rev. Laws, c. 51, § 20. This notice is not a mere step in enforcing a cause of action, but is a condition precedent to its existence, or in other words is one of its essential elements. Gay v Cambridge, 128 Mass. 387. No such notice was required however, in the case of the common-law liability.

It may be contended that, so far as respects the defective condition of the premises, the statute under consideration applies only to such defects on private premises as render insecure the footing of the traveler thereon. But we think that is too narrow a construction. It is to be observed that this statute is not an amendment to Rev. Laws, c. 51, § 20. It has no relation whatever to the statutory liability imposed by that chapter. So far as respects public streets it refers only to the common-law liability for the creation of a nuisance therein, and gives to those liable at common law for defect in a public way the same right to notice as that to which theretofore those upon whom rested the statutory liability were entitled.

But the statute does not stop with public streets, nor does it by express language name streets at all except 'an adjoining way.' It goes farther and declares that the notice shall be given in cases where there is a defective condition of the premises. Now, the common-law liability for a defect in the premises to not confined to cases where the...